Winning the Direct Attack on Democracy & Obama (Sup Ct Bush v Gore Pt. II decision due Friday 12-5)

[Land Shark]

Democracy is very popular. Thus, those unhappy with the results of democracy have nearly always been forced to undermine it INdirectly --because a direct attack (say, in favor of dictatorship) could not credibly be mounted.

Nevertheless, today there's an unprecedented direct attack on democracy, seeking to overrule the election of Obama by the people of the United States -- either in the Courts, or in Congress at the Electoral College.

These attacks presently take the form of three petitions circulating in the US Supreme Court right now, at least two of which are set to be decided in a secret conference of the full court on Friday December 5. Importantly, because these are applications for stay (requires 5 Justices), they also require that the Justices believe the petitioner is likely to prevail on the merits. As a result, on the off chance that a motion is granted, the case IS OVER BEFORE THE PUBLIC EVEN HEARS ABOUT IT. This is precisely what happened with the stay order in Bush v. Gore that terminated the recount in Florida -- the rest was reported by lawyers involved as really feeling like it was just going through the motions.

Because these cases presently at the level of the US Supreme Court seek to overrule the will of the American people they are entirely unlike recounts or election contests. Real recounts or election contests at bottom challenge the election only by saying (in more words than this) "I don't think the certified result is the true will of the people." That's not what these suits do.

These three suits, with more states circulating up the appellate ladder, could care less about the will of the American people: they are direct attacks on democracy and the will of the people, seeking to stop the election they know they lost, based on an issue raised in the primary and in the general that got little or no traction outside rightwing blogs.

THE FACT THAT THE ISSUE FLOATED AROUND FOR AT LEAST A YEAR IS VERY IMPORTANT. IT MEANS IT WAS CONSIDERED AND REJECTED BY THE AMERICAN PEOPLE.

THE FACT THAT THE ISSUE WAS NOT EXTREMELY HIGH PROFILE LIKE ACORN IS IRRELEVANT TO THE ABOVE. IF THIS WERE NOT TRUE THEN EVERY EXTREMELY MINOR OR FRIVOLOUS CAMPAIGN ISSUE COULD BE RAISED POST-ELECTION AS A CHALLENGE. BUT THE USUAL RULE OF ELECTION LAW IS THAT IT IS A SERIOUS EVIL TO BE PROTECTED AGAINST TO ALLOW ANYBODY TO SIT ON A CLAIM, SEE WHAT THE ELECTION RESULTS ARE, AND THEN SUE. BUT THAT'S WHAT HAPPENED HERE.

We need to focus on THE FUNDAMENTAL QUESTION: UNDER WHAT CIRCUMSTANCES CAN ANYBODY IN THIS WORLD OVERRULE THE UNCONTESTED WILL OF THE AMERICAN PEOPLE?

The answer to this question exposes those who hate or don't trust democracy.

The right wing sees these suits as no-lose propositions. Even if they win nothing, their full page ad in yesterday's Chicago tribune and related publicity at minimum seeks to undermine and split the Obama supermajority, peeling away 1% or more by painting Obama as a liar, a foreigner, etc.

The Donofrio petition for stay claims that Obama, McCain and the Socialist Candidate for president are all unqualified under the "natural born" clause. The Socialist candidate was born in Nicaragua, and was allowed on some ballots and not allowed on others. This will seem to the Supreme Court to represent an Equal Protection issue of differential enforcement/investigation.

IN truth, I'm more concerned about these cases LOSING, believe it or not. A likely ruling by the Supreme Court, if one is made, would defer to the Congressional electoral college process under the Political Question doctrine -- which many law reviews have since opined should have resulted in Bush v. Gore never having been heard by the US Supreme Court at all. The Court could punt the issue to the Congress, who would then, yes, in effect hold ANOTHER ELECTION and some kind of hearing about the issue, since no voter has been deemed to have standing in several pre-election cases. SURELY somebody must have standing to enforce the constitution, --- and we will "discover" that the Congress "does" at the level of the Electoral college. But if through delays, or stays, or Supreme Court ruling the Congress for any reason is allowed to second-guess the election, then we have a new election in yet another guise.

OK, so maybe you think "OBAMA WINS" in the Democratic congress. This is beside the point. While winning is not guaranteed, what will have happened at this point is that in your/our relief at Obama dodging a Supreme Court bullet, we accept what is, long term, a worse situation where the Congress can second guess the people's election, and pick their own president, and there's no likely appeal because of the POLITICAL QUESTION doctrine. This would be a defeat for democracy even if it ended up as a win for Obama or at least some other Democrat, in the worst case scenario.

So again I urge, the question is: Under what circumstances can any court or Congress overrule the clear will of the American people?

None.

This country is owned by We the People. We created the Constitution to limit and shape the powers of government. We can, in point of fact, knowingly elect a felon to the House or Senate and prior US Supreme Court precedents like Powell v. McCormack uphold the inability of the House or Senate to remove the people's choice for any reason other than the qualifications clauses in the Constitution, which are minimal.

In turn, at least six US Senators and Representatives have served full terms even though elected when they were TOO young under the constitution. Henry Clay is one example. Here again, this is not flouting the Constitution, this is a recognition of the power of the people to hire whoever they please.

As the "boss" of this country, if our qualifications in our Constitution require a "Ph.D." so to speak, we can damn well hire a Master's if we please.

Can we "hire" a politician who makes huge campaign promises about war and peace that turn out to be lies?

Unfortunately, Yes We Can. Did we? No we didn't.

Can we elect a felon and ratify that/assume the risks of that?

Yes We Can.

Do We the People, the sovereign power of this country, have the power to resolve conflicting claims on a birth certificate where one side claims Kenyan birth and ratify that or assume the risks of that?

Puh-leeze. Of course We Can. And yeah, we can ignore discriminatory claims about kenyan birth that, even if true, just don't matter.

Can the Courts or Congress, on a basis completely independent of the will of the people, second-guess the election, tell us to "try again", or veto our choices?

No They Can't.

As I've written before, the American people would never lose a struggle for democracy on their own country -- IF they understood it as such. So, of course, this direct attack (seeking to re-decide or overrule the election of Obama) is styled as "upholding the Constitution." In effect, our own national hunger for the restoration of justice, the rule of law and the Constitution is being harnessed -- in a twisted way -- so that the Constitution can start being enforced FIRST against Barack Obama. That's why it's important to see these suits for what they are -- and go on offense against those who dislike democracy.

WE SHOULDN'T EVEN GO TO THE "MERITS" ON THESE CASES BECAUSE NOTHING IN THE NATURE OF WHAT THEY SPEAK OF JUSTIFIES A JUDICIAL OR CONGRESSIONAL OVERRIDE (OR RATIFICATION) OF THE PEOPLE'S DECISION. We don't need their "help."

But if you must know what "natural born" means, here you go:

The 'natural born' clause in the Constitution sets forth two, and only two, classes of people, as does citizenship law: There are (a) "natural born" citizens, and there are (b) "natural-ized" citizens, what you might call "adoptive" citizens. All citizens who are not naturalized (and therefore choose our country freely) are natural born, or citizens from birth. There are no other classes.

But the rightwingers want to create a third class of people like Obama and Mccain who fall between the cracks somehow and are "mere statutory citizens." They speak of needing to be born on "american soil" and argue in effect that accidents of birth, such as parents vacationing in Europe, Africa, or Canada, are enough to disqualify an american citizen from ever being president. The notion that "soil" controls citizenship and allegiance is a core concept of feudalism. We are a nation of rights, Constitutions and laws, (in that order) and not a nation of men and not of "soil" either.

Even more fundamentally, our nation is the first nation in the world founded upon just IDEAS, not territory, not race, not class and not culture.

YES, We Can.

No They Can't. (overrule our elections or re-decide them in Congress or Courts)

That's all you really need to KNOW. But you must KNOW it. That way you don't get dragged into debating false frames that presume that if the rightwingers find another forged African document, this time from Kenya instead of Niger, that they've got themselves a "gotcha" that matters.

Instead, we should tell them that if American history of elections means anything at all, it means that We are NOT going to lawyer, subdivide or debate who "We" is in "We the People" like they did in the past to exclude blacks, women, etc. We the citizens means everybody. And the parts of the Constitution that accepted slavery but tried to sunset the slave trade, or that didn't accept women, like the 16 references to the President as "he" in the Constitution, have all been amended out of existence.

We may need to teach a little history as we win one for democracy.

[2 Much Tribulation]

1. K&R for democracy! nt

[BzaDem]

2. Stop fear-mongering. Every filing submitted to the Supreme Court is considered.

Just because someone files a case does not mean they are going to win it. The Supreme court gets thousands upon thousands of applications, and ALL are considered, and most are unanimously rejected (or rejected without a vote reported). I would be shocked if the case got one vote to be heard.

[Land Shark]

3. This is not "fear mongering" this says "go on offense" and it also says...

That even as the cases lose, they set negative precedents or political ideas. Congress being able to decide the presidency, again, is mentioned as one. Another is the repeated rulings that voters don't have standing regarding the Constitution (the allegations are deemed true for purposes of assessing standing).

Fear is not part of my experience. I've written chapters in published books on Bush v. Gore and on election law, state and federal, and political theorists of democracy.

I know for some people, they interpret every issue as a question of "Should I worry about this, or not?" WOrry and fear are useless. I'm just providing information so people can turn these cases into a benefit instead of just ignoring or laughing at them.

[BzaDem]

30. Someone uninformed about legal issues might look at your article and reasonably worry

So even if you aren't trying, I think this is unnecessarily worrying people. This case is not like Bush v. Gore at all, and the only reason it is even at the supreme court is because all the other lower courts dismissed it. If I were to file a case against Bush for him not being a natural born citizen, and I appealed the dismissals all the way up to the supreme court, the potential for changing the election result would be similarly ridiculous.

[Land Shark]

35. Your missing the parts about what happens when Obama runs the table perfectly

That's what I presume, that we wins, and I say in the OP i'm more focused on what happens if every one of these suits lose.

(By the way, we know that the Supreme Court is pretty much unique in its willingness to terminate elections at the presidential level. We couldn't possibly be on more notice of that fact)

If you have so much legal knowledge, please share it. So far, nothing you say evidences that knowledge.

In case you're wondering, I'm not trying to get you or anybody else to worry. I'm instead pointing to a way to easily win the debate with the 50,000 or so people who, today, faxed or fedexed the US Supreme Court to grant the stay. Tomorrow is just the first of at least several such opportunities.

Remember, now, I'm joining you in thinking the ODDS are substantially in favor of not hearing the case. My OP still stands. I think the issue, misleading as it is, will get a hearing somewhere, in Congress or the Courts and both of those options are bad (more likely in Congress) because it's structured in such a way that second-guessing of the election is probable if not guaranteed. Why would any DU'er be opposed to upholding the will of the people? If you don't want to worry, go take a walk. That's not what's asked of you anyway.

[jberryhill]

101. You've convinced me - you're not a lawyer.

The only "case" the Court could take is a review of the dismissal of the suit.

You, like the freeps, seem to suffer from the delusion that the Supreme Court is deciding whether to take the case for the purpose of ruling on the substantive issues in it. The substantive issues in the case - and in all of the other cases - have not been tried. There is no decision on the merits of any of these cases for the Supreme Court to review.

The ONLY things that are being appealed are dismissals. The ONLY thing to rule on, and not in the conference, but in a hearing to be briefed and scheduled later, would be the grounds for dismissing the case below.

If you were an attorney, you'd know that.

[Land Shark]

4. If someone fires a bullet at your head, you know it missed by a mile, so talking about it is "fear"?

This doesn't become an issue ONLY if the supreme court decides to exercise their option to intervene. It's an issue now because they have that opportunity. They could get in and get out real quick just to say it's a political issue for the Congress to decide. Most in the media would cheer their "not getting involved in politics", but this would force the claims into the Congress and the media and get the Supreme Court off the hook, seemingly, in more or less one fell swoop.

Dude, lawsuits in ten or more states overall don't just go away, except from the perspective of people just watching tv or their computers. They go away because at least some knowledgeable people take some actions of various kinds so that the suits are seen as untenable.

If these suits were seen for what they are -- attacks that attempt to overrule democracy -- then I would agree with you that there'd be little or no chance of the Supreme Court even kicking it over to Congress. But they are not seen that way right now.

[tomp]

5. it seems obvious that they are not seen that way...

....since the case got to the supreme court.

on a practical level, there is no doubt in my mind that a stay of the election will result in a vast uprising against the government. i think the sc knows this.

[Land Shark]

6. anticipated that. There you go again, telling yourself "not to worry"

(1) case is over by the time it's public
(2) case gets kicked over to congress on political question grounds.

But in any case, what makes you think the right wing DOESN'T WANT PRECISELY the "mass uprising" you speak of?
quotes: they anticipate "civil war" "Looming constitutional crisis"

That's what they WANT. That's what they hope for. Now you tell me that's why they'd never do this? Maybe not but it's anything but clear.

[tomp]

15. actually this fits with my theory that obama is in office (soon)...

...for exactly this reason...to quell the masses during the coming crisis. but underneath this idea is that they want to give obama a chance to do it without bloodshed. look for an increase in hard core suppression of the "left" very soon (as in the harassment and arrest of many demonstrators in Minneapolis).

i think the extreme right may want this immediately. i think the center (i.e., the ordinary right) want to try the "bipartisan" "reach across the aisle" tactic first. the sc ruling will indicate who is really in charge right now.

[Land Shark]

13. Did you consider the risk that an uprising is precisely what they want?

In these "turbulent times" granting a stay and agreeing to further hearings, if they bring about an uprising, provides the reason or the pretext for an authoritarian crackdown on those creating the "unrest" -- this is what they hope to achieve if you read the right wing blogs. ("consitutional crisis" "civil war" etc.)

The threat of "unrest" is not an objection to the OP.

[jberryhill]

63. It "got to the supreme court" by being laughed out of every other court along the way

Cert petitions "get to the supreme court" with the dignity and deliberate effort of driftwood and other tidal detritus reaching a beach.

[Land Shark]

7. Legal establishment taking these cases seriously, not laughing it off. see

http://www.michiganlawreview.org/firstimpressions/vol107/tokaji.htm (supporting my notion that "political question" is probably where this question turns on)

[H2O Man]

9. The right wing

will continue their attempts to assault our Constitutional democracy, and it is important to be fully aware of what tactics they are using. Thank you for posting this OP & related information. Of particular interest is the Michigan Law Review article linked here.

Nominated.

[Renegade08]

79. Article argues lawsuits would lack standing under Article III, not the political question doctrine.

The author's central thesis is that any citizen bringing a suit in federal court challenging the eligibility of presidential candidates would lack standing under Article III to bring suit, because the suit would not be able to meet the case or controversy requirement. He also notes that the case may also be dismissed under the political question doctrine, but, that's not the author's central claim.

[Land Shark]

81. True, that's just one example of a wider body of scholarship referencing PQ

For example, Larry TRibe wrote two law reviews post bush v. Gore saying the BvG cases never should have been heard by SCOTUS under political question. He's also written a joint opinion with Ted Olsen, his old BvG nemesis, opining that McCain is eligible for president even though born in panama, which has lesser references to political question relative to the law reviews.

If you want some information, let me know how many pages you want

[Renegade08]

83. Here's the deal - the Supreme Court DID hear Bush v. Gore.

Unfortunately, Tribe's opinion is just that, an opinion, and doesn't amount to law. Bush v. Gore, on the other hand, is the law of the land, and so that decision actually undermines your contention. Of course, like Tribe, you can argue that Gore was wrongly decided on the justiciability issue. But, the case hasn't been overturned, and won't be overturned any time soon.

[Land Shark]

85. it gets worse, it may NEVER be able to be overturned, because they

have the option, in an appropriate case that could challenge Bush v. Gore, to say "it's a political question" and we can't/won't hear it, as even Gore's attorney Larry Tribe admits, saying "I confess my error" in not raising the objection of political question doctrine.

So it Tribe is right, then they improvidently got up to SCOTUS, performed constitutional surgery that never should have been done on Equal Protection, got out, and now that door is slammed shut with a gate that says "POLITICAL QUESTION".

On the other hand, if Tribe is wrong, and he really didn't "err" or malpractice or whatever it was, then when and if we have another, probably presidential election we wish to sacrifice at the altar of the SCOTUS, we can send it back up there and hope for the best. They probably won't take a case that involves less than the presidency.

[Renegade08]

88. Okay, but, the point is, the political question doctrine is not the slam dunk

you may think it is in terms of getting rid of the Obama citizenship case.

[Land Shark]

89. It's an option, PQ doctrine is. An unappealable option for SCOTUS.

so while i don't guarantee anything, it's clearly an option. If they ground it in the Constitution, there's nothing anybody can do about it except amend the constitution (or ignore the case as void)

[Nuisance Man]

94. a shitstain on the law

Bush v. Gore is NOT the law of the land. It marked the end of legal, constitutional rule in America and a coup that transformed us into a banana republic. If you don't realize this, you haven't been paying attention. Supposing the Supreme Court ruled that, I don't know, all left-handed people had to be summarily executed -- would you accept that as the law of the land like a sheep, just because the Supreme Court ruled it? Judicial supremacy is not unlimited, and Bush v. Gore stepped WAY beyond the outer boundaries.

[jberryhill]

102. Minor Note

Bush v. Gore, by its own terms, is not the "law of the land".

It was the "law of that election", but is expressly limited to its own facts.

The ultimate weasel words of an unprincipled decision - "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

[Land Shark]

113. consideration is always limited to 'cases and controversies"

Agreed those are weasel words, but the conventional wisdom (not your words above) that Bush v. Gore is "not a precedent" is entirely an urban legend. It was cited in two 6th Circuit published cases last week ALONE. Moreover, and I'm reacting to the conventional wisdom more than the above post, if Bush v. Gore were NOT a precedent for any reason other than being considered VOID, then that would in fact be far worse. It would only mean that if a case came up with the same particular facts, not even then would the Supreme Court itself be bound to decide the case similarly.

THus, if Bush v. Gore is "not a precedent" that's the worst possible thing, because federal courts clearly apply the holdings of it, but if it's not a precedent than the supreme court's freedom to decide presidencies is unrestrained even if a case on point with Bush v. Gore comes up. They could, with an identical case, accept cert (to clarify the unclear status of Bush v. Gore and/or conflicts in the circuits on it) and then decide the identical case the opposite way, without even "reversing" themselves because the Bush v. Gore case is "not a precedent".

Like you say, Bush v. Gore is a fact. It decided a presidency. They don't seem to have suffered great permanent damage to their political capital given the aftermath -- they've decided many controversial cases since then. Not that I recommend it, but they decided Bush v. Gore without a single broken window in the land that I know of.

Some people say it couldn't happen again because there would be an uprising. Perhaps. but there wasn't one last time. So the Supreme Court might well think they could manage it again. I grant that it would be tougher sledding this time. That's why I see that if they get involved, they most likely defer to congress in their decision under political question grounds.

[jberryhill]

119. You have finally convinced me - you are not a lawyer

You have some sort of background in Poli Sci or legal philosophy, but you have absolutely no understanding of how legal precedent works in practice.

Yes - every decision is to decide a "case or controversy". Whether a particular decision is intended to state a general principle applicable to similar circumstances is something that is controlled by the language of the decision. Go look up "sui generis".

Finally, your understanding of the "political question" doctrine is junk. The situation here is "political" only in the sense that it involves an election. Whether Obama is a natural born citizen of the US by virtue of having been born in Hawaii is a fairly mundane question of law. As a question of fact, his Hawaiian birth is admitted in the Donofrio case.

What the "political question" doctrine is, is the governmental equivalent of the "business judgment rule". A court can decide whether an official has the power to decide to do X or Y. When people bring suits to the effect of whether the official should have decided X when the official decided Y, then the only question for the court is, as stated, whether it was in the power of that official to select between those options. If the official had the power to choose between X or Y, then any objection to how that official chose is a "political question". You are simply confused by different senses of the word "politics", and grossly misunderstand the meaning and application of the PQ doctrine. As noted above, your conflation of various legal concepts is most likely due to having a good - in fact exceptional -understanding of poli sci or legal theory or philosophy, but utterly no familiarity with the nuts and bolts.

[Land Shark]

8. Chicago Tribune coverage of political ad and Supreme Court Friday docket here

http://www.chicagotribune.com/news/politics/obama/chi-obama-ad-03-dec03,0,3124041.story

[WeDidIt]

10. Dude, get a sense of humor. Tinfoilhat nuttery often will bring cases to the SCOTUS

It never changes the fact that what is presented is tinfoilhat nuttery.

The fact of the matter is, the SCOTUS has no constitutional authority to determine the eligibility of any person to serve as president. That authority clearly resides first with the several states in the choosing of electors and then with the congress in the certification of the results of the electoral college.

Anybody who took ninth grade civics knows that.

[Land Shark]

11. Read the University of Michigan Law review link for analysis well beyond "9th grade civics"

But the point is by paying attention long enough to see these cases for what they are, they can be more effectively discredited.

[WeDidIt]

16. Saw no links in your post

but again, the responsibility for determining eligibility resides with teh several states in how they choose electors and with the Congress in how they certify the results of the electoral college.

In fact, if you read the 20th amendment, Section 3, it becomes clear that the determination of eligibility resides with the Congress when they certify the results of the Electoral college:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

3 U.S.C. 15 clearly states how an objection may be raised to question the eligibility of the President Elect, too:

Title 3
Chapter 1
§ 15. Counting electoral votes in Congress

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

[Land Shark]

18. The U of MI link is in the replies. You're making the case here for a new election, in the Congress

and that's quite undemocratic. WHy do you want Congress to re-decide the election? Article II specifically states that representatives and senators shall NOT be electors. They are NOT deciders, except in the special case where no candidate receives a majority of electoral votes.

Congress by statute, including but not limited to the safe harbor statute (if states go beyond the safe harbor date) has attempted to enlarge its power to decide the presidency regardless of the will of the people.

Here's the U of M link and note in the right column several other papers on the same topic. http://www.michiganlawreview.org/firstimpressions/vol107/tokaji.htm

[WeDidIt]

19. Damn, you can't read, can you?

I made the case that the Congress , and solely the Congress, is constitutionally able to determine if a President Elect is qualified or not.

The SCOTUS has no authority to make such a determination under the constitution.

If you're citing a link in a response to me, you'd damned well better either include it or have it in your opriginal post, too. Don't make me search around for some link.

[Land Shark]

23. Um, reading is searching for information

Your proposition that Congress gets to re-decide the presidency based on qualifications or any other issue other than the trigger of the death of a candidate or one candidate getting less than a majority of electors is exactly what I reject. Senators and representatives are wholly prohibited from being electors. The sovereign (which in a republic is the people) is the ultimate power that can do what it wills as far as elections go (though not as far as all LAWS go, because of limitations involving the fundamental rights of others). We the People can "hire" somebody who isn't "qualified" just like any other boss can. We're expected to pay all the bills over time too, aren't we? I've never heard of a boss defining themselves as so helpless as some people do, in defining the constitution not as a limitation on the powers of the government but to limit the power of election among the people. It's not been so construed. See the 6 or more federal representatives who've served despite being too young under the qualifications clauses for Senators and representatives.

[WeDidIt]

34. Then you reject the constitution

because it is the Constitution which grants this power to the Congress.

[Land Shark]

41. be specific, cite your power and your provision.

[WeDidIt]

50. Sure thing

First, from the constitution:

Article 1, Section 5.

Article 2, Section 1.

Amendment 12

Amendment 20, Section 3 (specifically, the second sentence).

and Title 3, Chapter 1, Section 15 of the United States Code.

[Land Shark]

65. Easy to take those apart

Article 1, Section 5: has to do with legislative not executive branch. I litigated a congressional election contest directly on point with this clause with the Congress claiming it gets to choose it's own members, thus it swore in a member with 68,500 uncounted votes on the FIRST count in a close race, the Congressman claiming the House had exclusive jurisdiction and "final authority". That phrase you use, "final authority" if given the expansive construction of the bigger power mongers in the house, would mean elections are entirely useless, in that the House and Senate have "final authority" (which they don't for various constitutional and structural reasons which I won't get into because this section is inapplicable.)

Article 2, Section 1. States "senators and representatives" shall not be electors. also states the job of the Congress is to TALLY the electoral votes, which merely is ministerial meaning to add them up as received. Also states that the power of decision in the electoral college devolves to the House only when no candidate gets a majority, and even then, the Senators and Representatives in that special case do not get to individually vote, but they vote by one state/one vote. (50 votes total). STill no "final authority" and self-perpetuating legislative majority "authority" here.

Amendment 12; The use of the word "devolve" implies an absence of causation or active pushing, this is the key word in terms of if and whether any selection duties for the "chief magistrate" accrue to the legislative branch, which is and has been disfavored (there cannot be the necessary separation of powers and independence of the branches if the executive is ordinarily or in any but extraordinary cases actually elected by the legislative branch. SEE STATEMENT OF SENATOR TRACY ON RATIFICATION OF THE 12th AMENDMENT, below.

Amendment 20, Section 3 (specifically, the second sentence). Special legislation or retroactive (self-serving) legislation is impermissible. I presume you are reading something into this language that implies a broad power of selection or review that isn't there? The word "qualify" is mentioned, but no power is given to the Congress to make that determination whatsoever, no is "qualify" defined as anything other than getting a majority of the votes in the electoral college, or as a reference to state-based proceedings. Recall that state legislatures have "plenary power" to fix the method of selection for electors under Article II jurisprudence, a construction that allows the House to pass on issues other than the special cases provided for in article II of non-majority and of amendment 20 (death) would render that plenary power of the state legislatures a complete joke, to be unwould at will by the federal house/senate.

So you've pointed to the sections, I fail to see any point to them. I can address the statute, which cannot modify or enlarge the constitution, in a next post.

The sense of "manly" below had a sense of civic involvement in it that was strong in the late 1700s...
" with manly firmness invasions on the rights of the people." Thomas Jefferson, Virginia Constitution, 1776. (*) Papers 1:338

"The Constitution is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no farther. Not a particle of it should be shaken; not a pebble of it should be removed ..." Justice William Patterson

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests. Patrick Henry

Governments are more or less republican, as they have more or less of the element of popular election and control in their composition; and believing, as I do, that the mass of the citizens is the safest depository of their own rights, and especially, that the evils flowing from the duperies of the people, are less injurious than those from the egoism of their agents. I am a friend to that constitution of government which has in it the most of their ingredient. Thomas Jefferson, 1816

The great check imposed upon Executive power was a popular mode of election; and the true object of jealousy, which ought to attract the attention of the people of every State, is any circumstance tending to diminish or destroy that check. It was also a primary intention of the Constitution to keep Executive power independent of Legislative; and although a provision was made for its election by the House of Representatives in a possible case, that possible case never was intended to be converted into the active rule, so as to destroy in a degree the line of separation and independency between the Executive and Legislative power. <…>--Senator Tracy, debate concerning ratification of Amendment XII to the United States Constitution

[jberryhill]

26. Ah, but here's my possibly premature question, before reading the rest of the thread....

"I made the case that the Congress , and solely the Congress, is constitutionally able to determine if a President Elect is qualified or not.

The SCOTUS has no authority to make such a determination under the constitution."

So what if the Congress gets it wrong?

And I'll split that into two parts:

1. What if the Congress gets it wrong as a matter of fact?

2. What if the Congress gets it wrong as a matter of law?

Are either the factual or legal findings unreviewable, as a matter of law?

You seem to be concluding that the determination is unreviewable as to fact or law, but I'd have to say that I am not a fan of unreviewable determinations by anybody.

I will say that I adamantly disagree with any suggestion that the "political question" doctrine is applicable to any of this stuff.

Further the notion that "the people have decided" strikes me as equally nutty. The "people decided" that "separate but equal" was a fine doctrine as well.

[WeDidIt]

32. Here is the answers

1. What if the Congress gets it wrong as a matter of fact?

Too bad so sad. Congress is the final authority as to the eligibility to serve as president. If the Congress gets it wrong as to a matter of fact, the Congress shall suffer political consequences for that action, but the president-elect thus disqualified will never take office. Most likely, if one house of congress were to get it wrong, it would be the House of Representatives. Due to debate rules within the Senate, that body is more deliberative and thus it would be less likely for the Senate to get it wrong as a matter of fact. It would be extremely unlikely for both bodies to get it wrong as a matter of fact.

2. What if the Congress gets it wrong as a matter of law?

The Congress CANNOT get it wrong as to a matter of law because under the constitution, the Congress is the final authority as to the eligibility of the President-Elect. If the Congress should ever disqualify a president-elect, that is the law.

The point being, though, is this is a last ditch check on the qualifications of a president-elect. The true authority resides with the several states and their election laws with a piece of that authroity handed over to the electorate in making the choice on election day. There has never been a case where the Congress overthrew the results of the Electoral College and presumably there never will be as the states in placing names upon the ballots and the process of political party primaries/caucuses would weed out those who are, in fact, ineligible. Occasionally, an odd third party candidate will appear on a ballot and not be eligible under the requirements of the constitution. This has happened numerous times in the past and has had no effect upon the final outcome of any election.

[Land Shark]

44. please cite the "final authority" on the PRESIDENCY language, not other offices. nt

[WeDidIt]

53. Amendment 12, Section 3, specifically sentence 2. n/t

[Land Shark]

68. and where does it say "congress decides" and not states, state legislatures or the people's votes?

The states, it's clear, have "plenary" meaning TOTAL POWER over the electors and their selection. IT seems you are interpreting something, I'm unsure what, to take away some or a lot of that plenary power, and thus violating article II.

Any clauses in alleged derogation of the states' rights regarding electors and the rights of the people to vote which attach immediately upon use of popular election as the method (i.e. in all states since the Civil War, as a practical matter) must be narrowly construed.

I'm thinking that you are construing one power, with a possible but expansive interpretation of congressional power, but failing to balance it into the system as a whole, or check to see if that expansive power of Congress you're arguing for makes sense in the whole. it seems the only way you can do it is by narrowing down "plenary" but that violates "plenary" power of the state legislatures to adopt a method of selecting electors.

[jberryhill]

120. Congress decided the elections of 1800 and 1824

...and the vice presidential election of 1824. Clearly you need to get into your time machine and fix those historical accidents.

Incidentally, do you ever cite case law?

Using Patrick Henry to interpret the 20th amendment is utterly perverse.

[Land Shark]

43. You can't think of any principled distinction between slavery or segregation & electing youngsters

Both electing the too-young and slavery would trigger express constitutional language. Do you really thing that all things constitutional are of the same weight? that waiting until after an election is over makes no difference? Case law says that if you wait until an election law is over that's an evil.

Congress all knew of the existence of this issue, they had resolutions about it regarding McCain for example.

If you are right, let's stipulate for sake of argument that you are, then hasn't all or parts of Congress perpetrated a fraud on the American voters by allowing them to proceed with a fake election on account of "unqualified" candidates? Do you see any problem with the timing of things here at all? I don't see how anybody who wasn't anti-democratic wouldn't at least be troubled by this, even if they continue to come down in a certain way. Are you?

[jberryhill]

49. Where one makes a "principled distinction" depends upon one's principles

And I fail to see why you insist upon making rhetorical personal commentary.

My name is attached to every post. No need to guess my politics:

http://www.opensecrets.org/indivs/donor_lookup.php?name=berryhill,%20john

So quit with the well-poisoning.

You say that "electing the too-young" triggers express Constitutional language, but then you say that its up to the voters to decide which language they want to be "restrained" by.

If I and a majority of voters believe that Jehovah is over 35 years of age, has resided in the US for 14 years, and is a citizen of the US, then we're good to go, yes?

Stating, as a matter of historical fact, that ineligible persons were elected to office and served is unimpressive. People have robbed banks and gotten away with it, too. That does not entitle me to rob a bank. The point is whether and under what circumstances their eligibility was or was not challenged and by whom. This notion of "historical fact as legal precedent" is quite the Scaliesque line of reasoning, no?

I agree with the general proposition that the Constitution is intended to limit government power, and that the first job of government is the protection and preservation of our rights. Among other things, the Constitution sets forth the process for amending it. The "express Constitutional language" can itself be changed by the sovereign electorate. There is not some sort of "de facto" amendment process.

[Land Shark]

67. The Constitution binds and restrains the government, not the people, or even corporations

the one exception is when the People, in their collective capacity, act as Legislators which they do in initiatives and referendums.

It's a solid principle that in every political system some entity or person has to be the sovereign at least from time to time. In monarchy it's the king. The sovereign, when acting as sovereign can do no wrong. If they COULD DO WRONG, then they wouldn't be the sovereign, whoever could correct or overrule the one previously thought sovereign is in fact the true sovereign in that case. The people are sovereign in any republic or democracy, but they exercise their sovereignty only in voting. Thus, it's quite unlike all the rest of the year when we are the same as subjects, we must follow the law. I'm not making this up, much of it is quotes in this thread, and it's foundational -- even more foundational to our system than equal protection and due process.

Everything in the constitution has to be understand to effect a process of Self-Government, as in all republics, where the people are sovereign. If the aristocratic or "representative" class gets to overrule the people's choice in any but extraordinary cases analogous to "tie-breaking" or otherwise interfere in the process then we're not really a free people.

The bottom line is that in light of the overriding principle of self-goverment, the power of congress to re-decide the election in any way has to be narrowly construed. Some support for exactly that is below in the form of a few quotes.

“It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy and not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which and no further our confidence may go;” Thomas Jefferson, Kentucky Resolutions, Resolutions Adopted by the Kentucky General Assembly, paragraph IX, at http://www.princeton.edu/~tjpapers/kyres/kyadopted.html 11/10/ 1798

" with manly firmness invasions on the rights of the people." Thomas Jefferson, Virginia Constitution, 1776. (*) Papers 1:338

"The Constitution is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no farther. Not a particle of it should be shaken; not a pebble of it should be removed ..." Justice William Patterson

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests. Patrick Henry

The sacred rights of mankind are not to be rummaged for among old parchments, or musty records. The are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. Alexander Hamilton, 1775, Joint Committee on Printing, Pocket Version, 22nd edition, The Constitution of the United States and the Declaration of Independence

[jberryhill]

70. You should write labels for Dr. Bronner, you know

Look, as a matter of general principle, yes you "get" the Constitution.

What I'm telling you is that for over a decade, the Constitution said, "You can't make, import or sell alcohol".

The Constitution can say whatever we want it to say, if we amend it to say it.

It says that the president has to be 35 years old, etc.

Patrick Henry opposed the Constitution, and I don't care how large a font you use, he still doesn't count as a legal citation.

What, in your opinion, was going on here:

http://www.youtube.com/watch?v=ef9va3wIryM

[Land Shark]

73. The move you perhaps are missing is that some laws are void if they

violate inalienable rights or are oppressive or tyrannical. Yes, there are risks in the nature of civil disobedience if a government presses enforcement.

But there's always one thing we can withhold, or two, even if we don't choose civil disobedience of some sort. And that's we can withhold our respect, and we can withhold our enthusiasm.

I may have misinterpreted you or another in this thread, perhaps, but if I did it was because I detect an overbreadth or enthusiasm, even if limited enthusiasm, for taking what you've now called an attenuated power system, and pushing for something I see as another step in the direction of greater attenuation (if it happens), perhaps even a giant leap.

If I felt like logic and constitutional construction required such a result, then I'd reluctantly follow (or withhold my respect, or wash my hands of it in some semi-public manner). But it's a mystery to me how any body could keep their enthusiasm or energy up for defending this type of congressional power to second guess the election for president. I don't begrudge you a right to an opinion, I just can't see how I myself could ever have energy for that.

Here we've got "sworn" representatives, who may purport to enforce the constitution against the people, but never WARNED THEM about a huge potentially no-good election? Our "representatives" holding our power, in trust, couldn't see fit to warn us of issues they clearly knew about (there was a senate resolution on the subject, for example)?

I guess I can see why people could get extremely pissed off at Congress. Enormously so.

[jberryhill]

87. "never WARNED THEM"

Actionable harm.

The Constitution doesn't say a 5 year old cannot run for president or cannot win the election. It says that a 5 year old cannot be president.

Now, we could elect someone who is over 35 but has only resided in the US for 13 years. What happens...


If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.



Now, you are saying essentially that the issue of qualifications is settled by the voters, since the voters deemed the president elect to be qualified.

Why then, does the Constitution note such a contingency as "if the President elect shall have failed to qualify".

In your reading, it is not possible for a President elect to fail to qualify, but the Constitution, which you are praising to heaven, indicates - as an expressly stated possible condition - that an individual can be elected, and yet not be qualified.

[Land Shark]

90. You can fail to qualify in the states. And that happens sometimes.

but not here.

Rights without remedies are all over the place. There's no "clear textual commitment" here of power to the Congress. There's no action verb there connecting congress with the word "qualify." The states are the only entities that actually run elections, there are no federal election workers.

Look at the amendment history for the 20th, there's no indication in there of any intent (at the cornell site) of any intent to broaden congressional power to judge anything, it only speaks of speeding up the transition of administrations, and having the new congress be in place in the unlikely event that any issue "devolves" upon the House.

Now the people would never elect a "5 year old". Like I said in the OP, i think this question reveals attitudes about trusting or not trusting the people/democracy. The five year old example is just ridiculous. But ANY QUALIFICATION PROVISION presumes that the people can't be trusted to elect a proper president without such a guide, and the guide is this: 35 years old, citizen, resident of a state.

If I didn't trust the people to elect a president, these are not the limitations i'd come up with.

Qualifications are still operative even if they only play out in the political realm. There is a remedy in the political process, which is bashing the candidate that's too young. That plus a campaign is a considerable check and balance, in practice insuring that nobody except governors, senators and representatives have been considered qualified for the office in recent years. Again, the real qualifications are in the minds of the voters, collectively, and they've been fairly high.

I'm going to go to bed soon, but if you'll indulge me, what's your analysis of the congress (certainly the Senate) knowing fully of this general issue, and just saying nothing and then taking advantage of the opportunity to re-decide the election?

[jberryhill]

95. I'll take the final question....

But all I can say is that the 20th amendment refers to a situation in which a President elect is not qualified. That condition has to go somewhere.


what's your analysis of the congress (certainly the Senate) knowing fully of this general issue, and just saying nothing and then taking advantage of the opportunity to re-decide the election?


If the House and Senate were of a mind to "re-decide the election" on some ground of "qualification", and did so precipitously, then that same House and Senate effect the same result even without being the arbiters of "qualification".

Consider - Let's say that you are absolutely correct, and that Congress assembled, even if intent on a perverse "qualification" objection as mere cover for a legislative coup, did not have the mechanism we are discussing. The same bunch of 538 jokers could simply impeach their way down - "Saturday Night Massacre" style - to whomever they wanted. Right?

So let's agree with everything you've said so far. What is your analysis of the congress taking advantage of impeachment to re-decide the election? Hmmm?

I can't see standing on some general "the people spoke" notion as the bulwark against usurpation of "the people's will" as to the identity of the President by a nefarious House and Senate, when the House and Senate could exercise impeachment.

Your point boils down to, "They can't keep him/her out on January 20th at noon, but can kick him/her out by 1 PM".

You tell me - what happens if Congress impeaches the President before he/she makes it down the street to the White House?

(and granted, we are well into late night silliness here, but I can't see why you want to make such an issue over whether Congress can prevent installation of a President, when the self-same Congress can REMOVE a President)

Or maybe I'm assuming too much, and you don't think impeachment is Constitutional?

(oh, and the freeps have this one covered - the impeachable offense in their "minds" is perjury upon taking the oath of office by a non-qualified President)

[Land Shark]

114. Boy, it is INCREDIBLY easier to stop candidate from office, than to kick out President w/ power

You speak of a "coup" by the legislative branch, that's your word not mine. They would purport to do whatever it is they would do as being wrapped in the sacred obligations of the constitution, of course, just as Donofrio freely admits on the web that obama and mccain are honorable and loyal citizens, but the technicalities of the constitution simply MUST be enforced, he claims, even if unfair.

To answer your question, briefly because it's not a hard or even good question, it's much much harder to kick out a sitting president with an entire federal government at his command not to mention the military forces and FBI, than it is to keep someone as president-elect from obtaining that power in the first place, via an electoral college post-hoc "eligibility" attack. AT that level, the candidate or president-elect does not yet have command of any resources, attorneys general, armies, navies, police forces, etc.

Plus unlike most of impeachment, Congress gets to make up a great deal of its own supposed authority, and standards of decision, when it comes to eligibility. If decided in the Supreme Court it would be a case of first impression. The degree of freedom would be perceptibly greater if congress takes the ball and runs with it.

[jberryhill]

121. Uh, no, it's just as easy either way

If the president is impeached and removed by act of congress, the president no longer has command of anything.

[Renegade08]

80. The 20th Amendment does not give congress the power to determine eligibility.

Nowhere in the 20th Amendment does it say that.

[stellanoir]

12. ". . .Bong hits for Jesus. . .!!!"

K & R'd

Let us know how this turns out and thanks for posting it.

[treestar]

14. The irony is that some of the same wingnuts or their followers are

all in favor of ending birthright citizenship on the soil, depending who your parents are - i.e. if they are undocumented immigrants.

It seems they would like to create an exclusive club of American citizenship.

The right wing will stop at nothing in order to be in power - well, we know that from the experience of the past 8 years - even if they undermine the Constitution to do it - making them not quite the patriots they claim to be - they reject the idea on which the US is based in favor of territorial or cultural bases for this country's existence.

[Land Shark]

17. They want citizenship to be statutory and not a birthright, making it a political football

IT's very dangerous to buy into frames or legal "realities" that allow citizenship, even a subspecies they want to create as a third class of citizen for qualifications purposes, can be a political football for Congress to kick around and change from time to time -- so-called "aliens" are essentially people without rights, given congress's plenary power under "naturalization". But this is quite different from naturalization, it's in the class of persons born citizens, but they want to claim some people are "unnaturally born".

[Joe Chi Minh]

33. Yes, it seems to be one of the extraordinary compendium of tricks they use, or

would use, the law to place at their disposal. Quite unbelievable, except that the far right has never baulked at any immoral expedient, no matter how nefarious. And the autonomy of the states' legislatures in establishing their own election laws only takes the potential for their trickery to an even more egregious level.

[jberryhill]

97. Next thing you know...

...they'll take a page from MacBeth and claim that birth by C-section is not "natural born".

They can't seem to believe that a nation that elected Millard Fillmore and Dwight Eisenhower would elect a guy with a name as strange as Barack Hussein Obama. Heh.

[jobycom]

20. A couple of questions... And unlike some, I actually read beyond the first paragraph.

(DU is Democracy, too, but sometimes at its most embarrassing. People offer opinions on posts they obviously haven't bothered to read or understand.)

First, nice post, and thanks for all that.

Second, you seem to be saying that Congress shouldn't have the right to review the qualifications of the elected candidates at any time, because even though the Constitution puts restrictions on who can be president, the people can choose who they want. But there is nothing in the Constitution that requires the president to be chosen by "the people," or by popular election. The Constitution also gives Congress, at least the Senate, to decide a candidate is unqualified and to refuse to ratify him as president. (20th Amendment, at least). It even gives Congress the power to choose someone else if both president and VP are unqualified, presumably in terms of the couple of restrictions the Constitution puts on presidential eligibility (age, citizenship, etc). Since Biden is qualified, the 20th Amendment says that he would act as president until a qualified president is chosen, if Obama were disqualified. Presumably, the only way a "qualified" president could be chosen at that point would be in the next election.

So, my question is, are you saying that Congress shouldn't have this right of ratification, even though the Constitution grants them that power? Or are you only talking about Congress being allowed to discuss and vote on an election before the Electoral Collegehas even been counted and submitted? The latter I can agree with, since the choice and qualifications of the Electors is a state issue, and they really don't have any restrictions put on them by the Constitution. What I'm saying is that it seems to me that the Electors can choose whomever they want, based on the state requirements now that they choose the candidate elected in those states, and that Congress's only role in this should be that once the Electoral votes are presented to the Senate, the Senate can then decide issues of qualifications and disqualifications.

That's important because at that point the Electors have chosen, thus the president and VP have been selected, and Congress could then only disqualify either of them on one of the Constitutional qualifications--meaning in this case specifically they could only disqualify Obama if his BC turned out to be forged, or actually if someone could prove he actually was born in Kenya (if that is interpreted as violating the "Natural Born" clause, which is a different argument and not as simple as you present it).

Anyway, I'm asking if you are saying that Congress's Constitutional role in the second case--once the Electors have chosen--should be disallowed, and if so, isn't that a more dangerous undermining of the Constitution than anything else you've mentioned? If Democracy can override that issue, then it can also override the 14th Amendment, or the 1st, simply by vote.

Third point, would Jesse Jackson Jr's "Right to Vote" amendment end a lot of these problems, by requiring that the president by elected, rather than giving the states the options to use other means of choosing their Electoral votes?

I'll hang up and listen. :)

[Land Shark]

21. Thanks for the questions, here are the answers

1. First, in order for Congress to decide anything, the duty or ability to do so must "devolve" upon them. Article II clearly states the Representatives and Senators may NOT be electors. Therefore, they may not vote for who is President or Vice President except in the cases specifically provided for in the Constitution, such as death of the president or no candidate receiving a majority. Congress has by statute attempted to expand their power, unconstitutionally, giving them broader "authority" via statute. But the Founders were adamantly against the legislative branch choosing the executive, except in the narrow cases where the right devolves. I don't see any clear authority to second guess the election based on "qualifications" and indeed such qualifications in the constitution have historically been ignored completely by the Congress, with 6 reps and senators serving even though clearly too young under the constitution (another form of "birth certificate" issue)

2. It's basically an urban legend that the people don't have a constitional right to vote for president. They do once legislatures decide the manner of electing electors is a popular vote, at which point even Bush v. Gore recites that the constitutional right to vote ATTACHES. Every state since the Civil war, essentially, has chosen the popular method of voting for electors, so as a practical matter this distinction suggesting there's no constitutional right to vote is technical at best. In any event, the right to vote predates the constitution, created and ratified the constitution itself, and comes from state constitutions and inalienable rights to alter or abolish the forms of government that long predate the Constitution itself. Many state constitutions recite that the right to alter or abolish is inalienable -- not even a constitution can change such a thing. It's like the right of self-defense. Even a constitutional amendment purporting to take away the right of self-defense from some or all people would not be valid.

3. The right to vote has been classed as a fundamental and constitutional (and above) right for over a century. Elections are provided for in the Constitution, and more than one amendment provides for no DISCRIMINATION in the right to vote. THe right to vote is CLEARLY thought to exist without need of an affirmative constitutional text or amendment, consistent with the above. It's omission is not a stupid omission.

4. Weaponizing the Constitution. The constitution applies to limit the powers of government and shape its forms, not to limit the power of the sovereign people. Constructions of natural born turn the constitution around and attempt to use it as a weapon against the people's choice. That's not what the constitution works on (the private sector)-- the constitution doesn't even protect us against corporations -- it is simply inapplicable to anything except government action or laws passed by government.

5. Any challenge to qualifications had to be brought before the election. Any other result disfranchises a supermajority of all americans, means that they allowed a "fake election" to go forward. Whoever, in effect, did that, whether Congress or what have you, should not be rewarded with the right to pick the president themselves.

[WeDidIt]

22. You are forgetting the statutory high bar to disqualify a President Elect

First, you must have objection raised by at least one Senator and one Congressperson. that's a fairly high bar to begin with as it carries political risk.

The second bar is acceptance of the objection within each house of Congress. That's an even higher bar as it presumes that both Senators and Congresspersons would be required to go against the will of the electorate within their districts and/or states. The poltiical risk would be extreme unless an overwhelmingly convincing case against the qualifications of the President Elect are raised within the written objection.

In other words, absolute proof the COLB presented already by Barack Obama is a forgery coupled with an absolutely proven document as to his actual birth place would be a requirement to even hope to hit that bar.

This is the final check on the choosing of a president within the Constitution. It's there for a reason, but carries the same political risk that articles of impeachment would carry in an actual presidency.

So in essence, the Several States hold the power of judgement as to qualifications in the choosing of the electors. The States have abrogated that judgement to a jury of the electorate in the manner in which those electors are chosen. The Congress serves as the final appeal as to questions of qualifications. As was seen in the 2004 election, raised objections are nearly a non-starter and have never played a role in the choosing of a president.

[Land Shark]

24. Statutes can not invade the constitutional structure, they can EXPAND not contract peoples' rights

The objections in 2004 went to the true will of the Ohio people, a completely different matter, as the OP points out, from this kind of challenge that does not dispute who the majority selected.

Granted congress has attempted to expand its powers beyond that of the constitution. The constitution operates to frame and limit the powers of government in its official capacity, so that the government remains a servant of the people, and the people do not become servants/slaves of the government. The way you read the statutes ignores the basic structure of our system, which is why I'm pointing to a tectonic power shift in an upward, top/down fashion as what's going on both generally these days, (bailout, etc) as well as specifically in this context.

[jberryhill]

28. yeah... tell that to the Bush v. Gore majority

Which subrogated a Constitutional claim to a statutory procedural requirement, and then limited itself to its "own facts". Yah.

[Land Shark]

39. Yeah so do you worship the Bush v. Gore majority, or the higher principles they ignored?

Gotta choose your master.

Meanwhile, someone else is insisting that NOOOOOOO, the Supreme Court would never do anything unexpected and unprincipled, -- despite the most public and abundant proof possible that this is their track record.

More likely outcome though is that they kick into Congress saying it's unreviewable in courts, then Congress can, now or in the future, redecide elections and override the will of the people. AS IF --- As if when we cast our votes for president, House and (in many states) Senate, attached to those House and Senate votes were little messages (please overrule my President Vote whenever you feel like!) Yeah, right....

[jberryhill]

42. The answer to that question should be apparent in context here...

You stated that a statute cannot over-ride the Constitution. My answer was to indicate that the Bush v. Gore majority - which still lives and breathes in the marble palace - thinks otherwise.

"More likely outcome though is that they kick into Congress saying it's unreviewable in courts"

...which leads to my favorite Onion headline ever:

http://www.theonion.com/content/node/30137

Supreme Court Rules Supreme Court Rules

WASHINGTON, DC—In a landmark decision Monday, the United States Supreme Court ruled 8-1 that it rules.

According to Monday’s Supreme Court decision, “the ability of the President and Congress to keep pace with us is not only separate, but most unequal.”

Justice Anthony Kennedy, writing on behalf of the majority, noted that "while the U.S. Constitution guarantees equality of power among the executive, legislative and judicial branches, it most definitely does not guarantee equality of coolness, and in this regard, the judicial branch kicks that which can be construed as total and complete ass."

"In the case of The U.S. Supreme Court v. Everyone Else (1997)," wrote Justice Clarence Thomas, "this court wins by a serious landslide."

[Land Shark]

66. Ok, I don't ever equate court "majorities" and popular majorities, but I can understand why you did.

[jberryhill]

72. WTF is that supposed to mean? /nt

[Land Shark]

76. You spoke of majorities on courts, i spoke of majorities of voters nt

[jberryhill]

98. No...

My point was directed to the bizarre reasoning of Bush v. Gore, which elevated a ministerial statutory provision to outweigh an admitted Constitutional principle in response to your subject line claiming "it can't happen".

It shouldn't happen. But it did.

[Land Shark]

111. You are right on that point. But that's precisely why I'm pointing similar dynamic

The "flip" side of the statutory safe harbor that Bush v. Gore was premised on rushing through (because it's so "terribly" important to beat that the presidential election itself must be terminated to beat it) is the notion that electors certified after the safe harbor are political footballs that the congress can play with and redecide the election.

I think that too is an example of a statute being read to exceed the constitution.

Another is citizenship. The rightwingers are systematically making arguments that elevate congressional statutes over what have traditionally and for a long time been considered birthrights. If we are "born with certain inalienable rights" and one of those rights is not citizenship, then we are in deep doo doo, because the rights of aliens are certainly political footballs, and relatively speaking they have no rights.

[jberryhill]

27. Point 4 sounds like advocacy of "mob rule"

viz. Prop 8.

[Land Shark]

48. Actually, it sounds like Patrick Henry, Thomas Jefferson, and drafters of the 12th Am.

except for my coining the word "weaponizing" the Constitution for use against the people themselves. (I make a distinction between LAWS, upon which restraints can and do act, like initiatives, and People, especially the People in their collective capacity).

Note that when the people act in an initiative or referendum process they are acting in a LEGISLATIVE capacity, a direct-legislative capacity. That makes the same principles restraining LAWS apply that otherwise restrain Congress's power to act (or the state legislature)

Patrick Henry points to another key difference: who the Constitution restrains, vs. who it SERVES:

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests. Patrick Henry

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." Patrick Henry

" with manly firmness invasions on the rights of the people." Thomas Jefferson, Virginia Constitution, 1776. (*) Papers 1:338

"The Constitution is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no farther. Not a particle of it should be shaken; not a pebble of it should be removed ..." Justice William Patterson

The great check imposed upon Executive power was a popular mode of election; and the true object of jealousy, which ought to attract the attention of the people of every State, is any circumstance tending to diminish or destroy that check. It was also a primary intention of the Constitution to keep Executive power independent of Legislative; and although a provision was made for its election by the House of Representatives in a possible case, that possible case never was intended to be converted into the active rule, so as to destroy in a degree the line of separation and independency between the Executive and Legislative power. <…>--Senator Tracy, debate concerning ratification of Amendment XII to the United States Constitution

[jobycom]

106. You take away individual rights by giving too much power to a simple majority.

You are in essence saying that the Constitution and Congress--which is the elected, representative legislature in our Republic--has no power to protect individuals from the desires of a simple majority. The restrictions placed on who can become president are not meant to limit the rights of voters, but to limit the powers of government or the powers of the individuals who become the government. If a simple majority were to elect a president who was a full citizen of England and who campaigned on a platform of dissolution of the Constitution and anexation of our government by England, under your interpretation the Constitution could not stop that, it seems to me. Congress has to have the power to limit the authority of individuals to violate the Constitution (by becoming president while not meeting the legal criteria, for instance), or else they don't have the power to protect us from any violation of the rights guaranteed by the Constitution. You can argue then that these rights are not granted by the Constitution, and I'll agree with you, but the Constitution is what establishes our current government as the protector and guarantor of our rights.

Every right takes away a right. My right to live takes away your right to kill me unless I am trying to kill you first. The hierarchy of rights needs some form of legal code and some governmental structure to protect it, to set a proper order, or else we have no rights except those which we as individuals can enforce on our own. That's anarchy, libertarianism, or democracy in the negative sense of "mob rule" that our Founders were so terrified of. Government, in our Republican system, is not an outside power over the citizenry, but is an extension of the citizenry. It is the collective we use to accomplish what we would be powerless as individuals to accomplish. Establish justice, ensure domestic tranquility, provide for the common defense, etc.

Maybe you aren't advocating limiting the Constitution in quite such an extreme manner, but you are advocating ignoring the Constitution and the powers that we the people grant to our chosen collective body--Congress--to enforce the laws we the people have constructed. Once that standard is established--that the power of a simple majority takes precedence over any restrictions or rights established in our government charter--then we the people no longer have any power to protect ourselves from the majority. Civil Rights is not possible. Laws against lynching or supporting abortion rights or not possible, etc, if the majority decides that they don't want these rights.

Further, since we choose Congress and they write the laws that govern the nation, we the people are writing those laws, and we the people, who ratified the Constitution, are placing the Constitutional restrictions on who can become president. Saying that we have no power to enforce the laws we passed means we have no rights whatsoever.

In the specific case of Obama and this fictional forged birth certificate, you are saying, if I understand you, that the time to raise the protest was during the election, and that since the election is over and we chose Obama, Congress cannot enforce the laws that would disqualify him (or any such candidate). Even if we bought that interpretation, we cannot argue that the People chose a disqualified candidate when the fact that disqualifies him was kept from the voters. Even though the story was out there, the majority didn't know about it, and certainly had the impression it was not true. In this case, the will of the People would not be protected by limiting Congress, but would be destroyed by limiting Congress. We would in essence be saying that Congress has no power to protect us from fraud using the laws that we established.

I like some of what you say concerning rights, especially the concept that rights come before the Constitution and from a higher source than the Constitution--undoubtedly that was the belief of many of our Founders, as the writings of Jefferson and Henry show, and as the Declaration of Independence specifically states. And I like the concept that in general the people have the power over the Constitution and Congress. But I think you in essence make the exact same mistake the Libertarians and Republicans make when you see the government and the Constitution as necessarily in opposition to the people. You say that the government WE elect and the government WE empower does not have the authority to enforce the laws WE ratify.

It is not the Constitution saying that a president must be a citizen, or whatever meager requirements are there. It is WE THE PEOPLE saying it, through the Constitution. If we do not like the rules previous generations gave us, WE THE PEOPLE can change those rules. But saying that the rules themselves have no sway is saying that WE THE PEOPLE have no authority whatsoever.

I just can't go with that. We the people establish laws through the Constitution and through our governing bodies, which we the people empower and limit and in all other ways define. (True, we the people can make a mess of it, and like any system we the people cannot keep it perfect). Therefore the laws have to have some power, even over "We the People." There are rights that can not be violated, but saying that government cannot enforce laws against the majority even when the majority violates those laws is saying that "We the People" are powerless, because we have no way to establish anything stronger than mob rule.

As for the "Right to Vote" amendment, I was talking specifically about embedding the requirement to choose the president by election. I understand the ruling of Bush v Gore (and I'm sure others, but I'm not a lawyer so I don't know the cases) that once a state establishes that an election be held, that all the protections of the Constitution against discrimination and restrictions on voting are guaranteed to the people (even though the Court then went on to violate those rights by not requiring that all votes be counted). In other words, the Constitution already protects the right to vote when the right to vote is granted. But nothing in the Constitution grants the right to vote to the citizens in choosing a president (any more than it grants the right to vote to the citizens in choosing Supreme Court Justices). The power to select the president is given to the states, thus the true authority for choosing the president is not with the People. Certainly the people choose the state legislatures that decide how the states choose the Electors, but that is still one step away from the People holding the power directly.

In most normal situations, that's a distinction without a difference. But take Bush v Gore--if the Constitution, rather than giving the power to the states, had given the power to elect to the people, it may not have been possible for the SCOTUS to rule that votes could be left uncounted by the state of Florida (remember, per curia the Court ruled that votes had been left uncounted). But since the ultimate authority for choosing the president lay with the states, and not the voters, ultimately the Court ruled, after the Equal Protection aspect, that Florida could decide how to certify its election. This ruling assumed, specifically, that Florida could thus decide to ignore uncounted votes in its decision.

If the power to choose the president were guaranteed by the Constitution to the People, not to the states, then that aspect of the Court's ruling would not have been possible, I think. (Not that I think the Bush v Gore decision was a legitimate judicial ruling anyway, as Bugliosi demonstrated in "None Dare Call it Treason").

Anyway, now that I've written more than anyone in the world will read, that's my thoughts. I doubt we are completely at odds here. I suspect that we are mostly in disagreement on the fringes of power and authority that are rarely tested in the first place. I do believe the power of the people, and the rights of individuals, are ultimate and sacrosanct and invoilable. But I also believe that government is our ultimate tool for guaranteeing those rights, not a stepping stone in the way of those rights. At times, our rights to violate other rights will be limited by government, and sometimes not fairly or in our favor, but there has to be some ultimate say besides the whim of the People, or else we have anarchy.

[Land Shark]

25. It's a mistake to look just to the constitution to define one's rights, or the american people's

If you look just to the constitution, say goodbye to these long-recognized fundamental rights (a century or two in most cases):

1. privacy
2. marriage for heterosexuals
3. right to have children
4. right to travel and move inter-state
5. right to vote
6. right to self-defense
7. right to remain silent (though privilege against "self-incrimination" is mentioned in the 5th Amendment)
8. right to employment (not having a law make it illegal for you to work in gainful employment)

Again, the Constitution limits the powers of government, and the application of laws no matter who passes them, but doesn't limit the power of election. There has to be a sovereign or ultimate power that can't be questioned in any given political system, in a republic that is the power of the people via election.

[jobycom]

107. I never did.

I see the Constitution as an extension of the will of the people establishing government. I therefore see government as an extension of the people's will. When government fails or refuses to listen to that will, it ceases to be legitimate, as our Declaration of Independence says.

Our rights come from above the Constitution, but the Constitution is our method of guaranteeing those rights. We certainly have rights not specifically mentioned in the Constitution. However when rights are specifically mentioned, or when government is restricted, in the Constitution, government has a specific obligation to obey. The rules we set up in the Constitution governing who can become president are not violations of our rights to choose, they are the codification of our rights to choose, and the restrictions on the government from taking away those rights. The Constitution codifies the right of the people to say that a president must be a natural born citizen, though, and therefore government has a requirement, not a right, to enforce that restriction, since We the People, through the powers we define in our Constitution, set that restriction. Same with the other rights you mention.

It's like the theological debate over whether God can make a stone so heavy that he cannot lift it. Can the people make a law so strong that the people cannot violate it. I believe we have to have that power, or we have absolutely no power at all. And the Constitution is our expression of that power, as citizens within our established form of government.

[jberryhill]

29. To simplify

In order to avoid the impression that you are discussing substantive merit, let's go to a hypothetical.

A majority of the voters elects a 25 year old person to be President. What result?

[WeDidIt]

31. IF the candidate openly proclaimed their real age during the election

it would be incumbent upon the Congress to deny them office.

If it was only supposed by some cranks who claimed presented documentation was fraudulent, it would be laughed at.

[Land Shark]

36. The concept here is "issue preclusion" not "the truth of the matter"

if the concept is "the truth of the matter" elections can endlessly be second-guessed, people always disagree on the truth. Instead, the concept is whether an issue got its chance in court, and in the court of public opinion. It did.

The real qualifications for the presidency are in the minds of American voters, not in the constitution. The qualifications in the minds of voters are enormously higher. Obama passed those with flying colors.

I'm not going to walk around with racist or nationalist assumptions about being born on "soil" that's right (this is feudalism, pure and simple), or that if my parents are vacationing in canada when I'm born that this is a difference that makes some kind of difference. It just doesn't.

[jberryhill]

38. Your last sentence....

Again, I'm not addressing the absurd substantive claims or crackpot legal theories of the case at bar. Donofrio's attempt to avoid the clear language of the 14th Amendment by application of British law is a joke.

(Funnier yet is that Obama returned from Indonesia without his mother and with his own US passport, which alone demonstrates the oddity of the "lost it in Indonesia" strain of this particular virus)

But if in some bizarre future the hallelujah corner of the GOP runs the second coming of Christ for President, and a GOP congressional majority deems him qualified, it would not be anti-semitism which would drive my concern about his birth in Roman Palestine to two non-US citizens.

[WeDidIt]

51. Again, I disagree. The qualifications are very clear.

And there are two classifications of citizens, natural born and naturalized. It's very clear that Arnold Swarzenegger is not qualified under the constitution to be elected president, but he still could eb elected president and under such circumstances, the Congress could nullify the results by declaring his electors null and void when certifying the results.

[jberryhill]

58. It would have been interesting....

....if any of the parade of representatives at the election of GW Bush in 2000 had a senate sponsor:

http://www.youtube.com/watch?v=a6wl_86qnsI

Land Shark thinks this was theater.

[Land Shark]

71. And then the Congress should be all removed for colossal fraud on the people: Fake Election

There's not any reasonable doubt that the Congress would know of the issue BEFORE the election. You imply that they can cause a billion in campaign spending, waste the time of literally millions of people, all in order to, after the election, swoop down like hawks based on an "issue" they know about ALL ALONG?

That would be a crime against democracy. A very serious one. As will be any attempt to try to redecide the presidency after a clear victory here.

[jberryhill]

99. No, it wouldn't -be- an issue before the election

The 20th Amendment refers to circumstances in which the President elect is not eligible.

Prior to the election, there is no President elect. Congress doesn't run the election, choose the electors, or for that matter, select the candidates or put them on ballots.

The Constitution does not assume the existence of things like mass media, parties, campaigns, etc. The assumption appears to be that some time prior to January 20th, a bunch of electors (chosen in whatever manner the states choose them) are going to show up on horseback and vote.

When 538 folks show up on horseback wearing fur caps, and elect a jar of mayonnaise to be President, then Congress might have a thing or two to say.

[Land Shark]

37. Do the research, it's happened already, 6 times or more with federal office

The Senators and Representatives all served. One person beyond these six voluntarily delayed an oath by a few months, but didn't need to.

The Constitution doesn't overrule the sovereign's (the people's) decisions on elections. When we act as voters, that is the one or few times per year when we are IN CHARGE and we're electing representatives to hold our power. That's why they're traditionally called public "servants". That's Democracy 101.

See Montesquieu, the most quoted political philosopher before and after the american revolution, who explains that each political system must have an ultimate power, and in the systems of republics and democracies, that power is the people. Almost all of this short essay approaching 300 years old survives the test of time intact. http://press-pubs.uchicago.edu/founders/documents/v1ch2s3.html

When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.

In a democracy the people are in some respects the sovereign, and in others the subject.

There can be no exercise of sovereignty but by their suffrages, which are their own will; now, the sovereign's will is the sovereign himself.

[jberryhill]

40. The joy of asking folks who have done the research

...is that they often share what they have learned.

[Land Shark]

45. Did you read the OP? First name there is Henry Clay.

He was born in 1777 and elected to the US Senate in 1806 (see right column at http://en.wikipedia.org/wiki/Henry_Clay

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests. Patrick Henry

Just what is it that America stands for? If she stands for one thing more than another, it is for the sovereignty of self-governing people. President Woodrow Wilson, Speech at Pittsburgh Pennsylvania, January 29, 1916

[jberryhill]

54. Good for him - Have you ever heard of D.B. Cooper?

D. B. Cooper hi-jacked an airplane for a $200,000 ransom payment, parachuted out of the plane, and was never found, tried or imprisoned. It doesn't make it legal.

If "the people" find a Constitutional provision to be a bar to what "the people" want to do, then "the people" have a process for amending it.

George Bush hasn't been impeached for <insert list here>. Is that a ratification of everything he did?

And here I'll get down to outright heresy - the Constitution was amended to extend the voting franchise to women. Was that a waste of time? Should they have just shown up and voted anyway? Why on earth didn't they think of that?

And, lest we forget, the *other* principle cause of many of those self-same suffragettes was to become enfranchised for the purpose of carrying out the other commingled aim of that very same movement, largely construed. Temperance.

Within one year of women getting the vote, what did we get? The Eighteenth Amendment. That's not a historical accident. It is a consequence of the organizational power and experience that women - such as Susan B. Anthony - gained in the temperance movement.

Now, there was a whole lot of distilling, importing, and selling of liquor by "the people" going on up until 1933, but that didn't mean the Constitutional prohibition of those activities was some sort of mass delusion.

[Land Shark]

69. Mind telling me where you're coming from? You're making fun of the American people

and that is perhaps easily subject to misinterpretation. So I'll just ask you to explain your philosophy of governance.

Although I've said this in a couple other replies, perhaps you've not seen them: the sovereign power of the people in a republic is only exercised via their suffrage or voting (see Montesquieu quote in this thread), not the rest of the year, and it's only as to electing the representatives to hold THEIR legislative and executive powers, not when acting in a legislative capacity (the people in initiatives are then legislators).

Our choice in terms of candidates is often quite limited. Yet you seem to mock our freedom even within the limited choices set out by the two party system structuring, as if any loosening of any perceived chain would be sacrilege. (political parties are not in the express text of the constitution at all but have made it into some court rulings).

it's very simple: while the constitution provides the structure to some extent that the people in their sovereign capacity operate within, it does not bind or control the people. EXAMPLE: Let's say you try to put a gag on me to stop me from speaking, intentionally in order to prevent the exercise of my First Amendment rights. You are a priviate party, an individual. I have absolutely no constitutional cause of action against you. The Constitution is inapplicable. There's no "state action" as they say. Nor is there "state action" when all of us private individuals go to vote, forming a temporary collective. THE CONSTITUTION IS INAPPLICABLE.

The real "qualifications", and they are usually quite high ones, are in my head, your head and other voters' heads. They are way beyond the placeholder "qualifications" of the constitution. THese are the real qualifications for office. The Supreme Court (even) recognized in oral argument in the Crawford case that many people don't even have birth certificates and can't get them (a sizeable minority).

Failure to meet the "qualifications" of the Constitution is fair game for POLITICS. It does not limit the power of the people, since the constitution simply doesn't apply to private sector. If some folks want to make it start applying now, PLEASE LET'S APPLY IT TO CORPORATIONS AT THE SAME TIME. Because it never is.

I trust we can agree on expanding the Constitution to limit the powers of corporations? :)

[jberryhill]

100. Again with the personal insinuations....

I'm a natural born citizen of Delaware, if you must know. The First State to ratify the Constitution and the deciding vote for Independence. I suffer from the handicap of having had Joe Biden as my advanced con law professor, so forgive my apparent ignorance of the topic.

Then again, my mother was a war bride and a naturalized citizen, so I guess the freeps won't let me be president either, heh.

I'm beginning to doubt you are a lawyer, though. If "the constitution is inapplicable" then why were you saying that a 5 year old cannot, if he wins the election, be president?

You seem to grasp the function of the Constitution in its substantive relationship to state power and individual rights. You do not seem to grasp that it also includes a procedural outline of certain functions.

But I'll tell you this much for certain - you make one more statement to the effect that I'm some "enemy of freedom" or raise questions concerning my origin or parentage, and you can continue to have this conversation on your own. You got that?

I am absolutely fed up with the attitude of those on the right that disagreement equates to lack of "patriotism", and I sure as hell am not going to put up with that sort of well poisoning crap from some a-hole on DU.

Congress can remove any president from office at any time by impeachment. They can do it immediately upon inauguration of the president if they want. Where does your popular sovereignty go then?

[Land Shark]

112. I asked you to clarify how you feel about the outcomes you seem to be urging

You ask "where does your popular sovereignty go then?" I think popular sovereignty is yours as well, but here's the answer:

Popular sovereignty inheres only in voting/elections. If it is not HONORED there in elections, then it exists NOWHERE, since as you point out inherently, we have no procedures set up for recall, and Congress controls impeachment. However, under clear republican political theory (small r) the representatives in Congress, holding our power, act on our behalf, and we are still sovereign, albeit acting through representatives.

Admittedly, there seems to be a breakdown lately in that connection between people and their representatives, we can mostly speculate as to why, but maybe it's corporate/money influence combined with safe districts that reduce accountability to the electorate.
==========

So, well, this may be a conversation ender for you because you take it entirely the wrong way when I merely say you give a certain impression and I ask you to clarify. This leaves the door wide open for you to set forth (a) what you think is right legally and democratically in terms of congress's power to re-decide the presidency other than in cases of the death of the president and no candidate receiving a majority of eletors, and (b) how you feel about that -- in terms of is it an outcome or process that you believe in, or something you feel is legally inescapable that you wish weren't there?

In response to the above, I don't think there's any "wrong" answer, so if you want to continue to be put off somehow, there's not any basis for it in response to the above.

[jberryhill]

55. Good for him - Have you ever heard of D.B. Cooper?

D. B. Cooper hi-jacked an airplane for a $200,000 ransom payment, parachuted out of the plane, and was never found, tried or imprisoned. It doesn't make it legal.

If "the people" find a Constitutional provision to be a bar to what "the people" want to do, then "the people" have a process for amending it.

George Bush hasn't been impeached for <insert list here>. Is that a ratification of everything he did?

And here I'll get down to outright heresy - the Constitution was amended to extend the voting franchise to women. Was that a waste of time? Should they have just shown up and voted anyway? Why on earth didn't they think of that?

And, lest we forget, the *other* principle cause of many of those self-same suffragettes was to become enfranchised for the purpose of carrying out the other commingled aim of that very same movement, largely construed. Temperance.

Within one year of women getting the vote, what did we get? The Eighteenth Amendment. That's not a historical accident. It is a consequence of the organizational power and experience that women - such as Susan B. Anthony - gained in the temperance movement.

Now, there was a whole lot of distilling, importing, and selling of liquor by "the people" going on up until 1933, but that didn't mean the Constitutional prohibition of those activities was some sort of mass delusion.

[Guaranteed]

46. Ummm.....yeah. Two words:

Prop 8.

[Land Shark]

47. Ummmm.... yeah, you don't want to be understood by anyone else?

There's no difference between a fundamental individual right with clear standing and clear damages and all these cases where the courts say there's no standing because there's no injury. Ya think the right to be married is of the same order, value and enforceability as say an age qualification for office?

Patrick Henry points to another key difference: who the Constitution restrains, vs. who it SERVES:

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests. Patrick Henry

Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Patrick Henry

" with manly firmness invasions on the rights of the people." Thomas Jefferson, Virginia Constitution, 1776. (*) Papers 1:338

"The Constitution is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no farther. Not a particle of it should be shaken; not a pebble of it should be removed ..." Justice William Patterson

"It is a perversion of terms to say that a charter {constitution} gives rights. It operates by a contrary effect- that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. If charters were constructed so as to express in direct terms, "that every inhabitant, who is not a member of a corporation, shall not exercise the right of voting," such charters would, in the face, be charters not of rights, but of exclusion. The effect is the same under the form they now stand; and the only persons on whom they operate are the persons whom they exclude. Those whose rights are guaranteed, by not being taken away, exercise no other rights than as members of the community they are entitled to without a charter; and, therefore, all charters have no other than an indirect negative operation. They do not give rights to A, but they make a difference in favour of A by taking away the right of B, and consequently are instruments of injustice." –Thomas Paine

Our Constitution does not grant us rights, because "We" already hold all rights. Instead, it defines the boundaries of our government, and identifies what privileges "We the People" will grant to that government. Thom Hartmann

The great check imposed upon Executive power was a popular mode of election; and the true object of jealousy, which ought to attract the attention of the people of every State, is any circumstance tending to diminish or destroy that check. It was also a primary intention of the Constitution to keep Executive power independent of Legislative; and although a provision was made for its election by the House of Representatives in a possible case, that possible case never was intended to be converted into the active rule, so as to destroy in a degree the line of separation and independency between the Executive and Legislative power. <…>--Senator Tracy, debate concerning ratification of Amendment XII to the United States Constitution

[jberryhill]

62. I understood his point clearly

Yes, the point of the Constitution is to limit power by enumeration and separation.

The aim is to avoid tyranny. And you have never shaken at the sound of the word "tyranny" in the same manner as Joe Biden used to pronounce it during his con law classes at Widener, and it is why I do not doubt his convictions in the least on that point. The campaign rhetoric about abuse of power was not just rhetoric. To the core, he believes that tyranny is the greatest earthly evil.

But we don't need to reproduce the Federalist and the Farmer here to get to the point that the Constitution, as drafted, more greatly attenuated the connection between the ballot box and the federal government, than as amended now (particularly w/r/t popular election of Senators). This was not considered a bug, but it was expressly sold in the Federalist as a feature. That attenuation was intended as a bulwark against the problem of tyranny of the majority.

So if you are going to cite Jefferson's commentary - consider it in the context of Jefferson's Constitution.

[blm]

52. Clarence Thomas needs to be IMPEACHED - he's a DISGRACE to the Judicial System.

.

[jberryhill]

56. He's not enough of a judicial figure to qualify as a "disgrace"

Please do not insult the other disgraces to the judicial system by lumping them in with Thomas.

If he had ever exercised a judicial mind, then we'd know whether or not he is a disgrace. But he hasn't risen to that level.

[blm]

57. heheheh.....I will happily stand corrected....

.

[Land Shark]

77. always good to find major points of agreement. :) nt

[Fridays Child]

59. k/r

[malaise]

60. Brilliant post

K & R

[Land Shark]

74. Thanks, and thanks for keeping me "brief"! :)

[aquart]

61. I'm thinking the justices have relatives who will be looking for loans.

Their own paychecks may be steady and safe, but their kids and grandkids will be out of work, also their brothers and sisters and nieces and nephews.

I mean, hysteria is all well and good in its place...but we're worried about money here. The only rubberband holding this economy together at all is the hope that Obama will do what Bush never considered: help Americans.

De-stabilizing our orderly transition is the same as saying our money is worthless on the world market. Which means bye-bye ALL the banks.

So stuff your caterwauling back under the bed where it belongs.

[jberryhill]

64. You underestimate the seductiveness of love affairs with The Law /nt

[Land Shark]

AS your sig says "Democracy is slow and annoying; every voice counts"

[Peace Patriot]

75. All of this presumes that Barack Obama was elected. Who can prove it?

Ha! Nobody can! Half the voting systems in the country are 100% non-transparent, run on 'TRADE SECRET' code owned and controlled by Bushwhack corporations, and the other half are barely transparent, some states having NO audit, and only the best of states conducting a 1% audit (entirely inadequate in a 'TRADE SECRET' code system--99% of the ballots are never seen by human eyes except in the rare circumstance of a recount).

It might help your case, in proving that Obama was elected, that the states where he lost tend to be 100% non-transparent. (Hm, wonder why.) But you'd have to come up with a real, eyes-on count of all the 'TRADE SECRET' optiscans systems (which have a ballot TO count) and their central tabulators that gave Obama the majority of electors in the voting systems that at least have a ballot. But since 99% of the ballots in those states have not been counted by anyone, we really don't know who won.

We are almost entirely dependent on Diebold, ES&S and Sequoia and their 'TRADE SECRET' vote tabulation to tell us who won.

--------

I have a feeling that this absurd idea that your mother has to be on U.S. 'soil' when she is giving birth to you, to make you qualified to be president , may be Obama's "Monica Lewinsky"--the kind of nutball issue that our corp/fascist press seizes upon, that makes the rest of the world think that we are insane.

I'm with LandShark on that. There is NOTHING too crazy for the corpo/fascist press to dwell upon as a psyops distraction while their global corporate predator pals bleed us of every last dime unto the 7th generation.

[Land Shark]

84. While you make some points, I think McCain stipulates he lost (or would do so) nt

[jberryhill]

103. Well, so much for consistency

Can McCain determine who won the election by stipulation?

So, you are saying that even if McCain won the vote, but decided at the end of the day that he'd changed his mind about the job, that he would have the power to say that Obama had won?

You were upset about Congress deciding the election, but you are happy with one individual having the power to decide the election?

Holy Usurpation Of Popular Will, Batman!

[Renegade08]

78. Obama was born on American soil.

But the rightwingers want to create a third class of people like Obama and Mccain who fall between the cracks somehow and are "mere statutory citizens." They speak of needing to be born on "american soil" and argue in effect that accidents of birth, such as parents vacationing in Europe, Africa, or Canada, are enough to disqualify an american citizen from ever being president. The notion that "soil" controls citizenship and allegiance is a core concept of feudalism.

Obama DOES NOT fall between the cracks somehow. Mccain does. Obama was born on American soil, because he was born in Hawaii, the 50th state of the United States.

If you want to argue that McCain still is a natural born citizen even though he was born in Panama, go on right ahead. But, don't mistakenly conflate McCain's situation with Obama's firm and clear natural born citizen status.

[Land Shark]

82. I'm fine if you want to believe that. The RW has such a huge VOLUME of crap to throw

that if you get into that debate, a debate that presumes that they somehow "win" if they prove an accident of birth in Kenya, there's a very steep learning curve. And a very significant number of people get misled along the way and sucked into the RW frame that foreigner=danger=socialist and by insisting on "Hawaii" even though true it just reinforces that frame.

[Renegade08]

86. Uh, how about insisting on Hawaii because Obama was born there?

You get sucked into the RW frame and reinforce the myth of Obama's Kenyan birth if you want to concede the TRUTH to argue about some hypothetical situation that doesn't apply to Obama at all. Leave Obama out of it, and argue about McCain instead, since McCain's status as a natural born citizen actually is questionable.

[Land Shark]

92. I've no personal knowledge of where I myself was born. Much less Obama.

There's a lot of allegations I'll bet you've never heard. If someone were forced to listen to these, a lot of people will be persuaded that there's a real issue -- even if there isn't.

I'm not sure if you're a lawyer but you sound like one -- if so then i'll say "this is a fact issue - it goes to trial. Reasonable jurors could potentially go either way, because they are entitled to conclude that either side is just lying."

[jberryhill]

104. Oh please.....

I'm on the edge of calling shenanigans here.

I've read all of the freeper stuff on this, and there is no jury question here.

A jury does not get to rule on the conclusive effect of a certified state document as to the issue of where Barack Obama was born. Even a severely crazy judge that let it go past motions to a jury, and a crazy jury that went bananas would be reversed on JNOV.

As to the other freeper "theory" - i.e. "born in Hawaii but not natural born citizen due to British law" - that one is not a fact question. That, by the way, is the theory of the Donofrio case which admits Hawaiian birth, and happens to be the case subject to the cert petition that is the ostensible subject of your OP.

Or did you forget that?

And, by the way, their whole "anybody could get a Hawaiian birth certificate" thing is pure crap. Yes, Hawaii wasn't a state prior to 1959, so nobody born in Hawaii prior to 1959 had a Hawaiian state birth certificate in 1959. Every Hawaiian birth certificate, however, does indicate the place of birth.

Hawaiian birth records, by the way, are not some random free-for-all, particularly because native Hawaiian ancestry is required in order to benefit from certain trusts established for native Hawaiians since 1921, and incorporated into the statehood deal. See, e.g. Arakaki v. Lingle http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C0D7650F8637C4878825706E004FBD4A/$file/0415306.pdf?openelement

And if you really want to get picky - try reading the passage in Dreams From My Father relative to Barack Obama's return to the US from Indonesia. He didn't travel on his mother's passport. He had his own US passport. Primarily because, if you knew his biography in the first place, you'd know that his mother didn't return from Indonesia when he was sent back to live with the Dunhams, since he'd run through the correspondence classes that his mother was taking him through to supplement his education.

[Land Shark]

115. Well I think their case is more powerfully misleading by far than what you say

I'm not going to post about it, but if you PM me, I'll send you my phone number and we can talk about (or I'll call you if you like). I kind of doubt you've seen it all though clearly you've done homework. You know it doesn't take a heck of a lot to create a fact issue, and that's what they're trying to do. I'm not going to post their whole case here, but can discuss it on the phone if you like. Or others can PM me too if they wish.

[jberryhill]

118. By "their case", I'm assuming you mean Donofrio's

Which is by no means some sort of "private" information.

On the merits, there is nothing "powerful" about it.

The Donofrio case admits that Barack Obama was born in Hawaii, so the issue of his place of birth or parentage is not even on the table. Donofrio's case relies in toto on the whole cloth creation of a new class of citizenship never seen before, i.e. "born a citizen, but not a natural born citizen". The other formulation used by Donofrio is "citizen at birth, but not citizen by birth". It is stupid beyond belief, particularly in view of the fact that the 14th Amendment expressly states two types of citizens - "born or naturalized". Obama was never naturalized, and Donofrio admits he was born here. End of story.

The other non-Donofrio-theory cases rely on either of two theories. The first theory is that he was not born in Hawaii. However, the State of Hawaii has certified that he was born in the city of Honolulu on the island of Oahu on August 4, 1961. The question ends there, as the State of Hawaii's certification of that fact is the final say on that question. An interesting footnote as to why that is so is Dred Scott v. Sanford. Dred Scott was not overturned, but parts of it were rendered moot by the Reconstruction Amendments. However, the part of Dred Scott addressing state citizenship is still the law.

The second theory is that Obama "lost" his citizenship prior to the age of 18, by acts performed by his parents. That theory is beyond stupid. Prior to the age of 18, a citizen by birth in this country does not have legal capacity to renounce his or her citizenship. Period. End of story. In practice, this is a very important principle in international child custody and parent abduction cases.

As noted, Barack Obama returned to Hawaii alone as a child, and did so on his own US passport. It was crazy people in search of support for these crackpot theories which was behind the breach of his passport records at State during the primaries in the first place. Guess what - they found nothing.

The other common "stupid supporting fact" is that Barack Obama traveled to Pakistan in 1981. A common freeper myth is that US citizens "were not allowed" to travel to Pakistan in 1981, and that Obama travelled on a mythical "Indonesian passport". Of course, US citizens were perfectly allowed to travel to Pakistan in 1981. There was a State Department advisory about it - as there are about many other countries including Thailand, from which I recently returned, and most assuredly on my US passport.

The US cannot stop you from traveling to or returning from another country. Take Cuba, for example. You can fly there from Canada, Jamaica, Mexico, and a number of places. The Cubans will welcome you in. Upon your return to the US, you are entitled to enter the US, because you are a US citizen. Now, you will be subject to penalties for having conducted economic activity there (inherent in visiting) unless you had permission to go. However, the US cannot stop you from going, and cannot bar your re-entry into the US. Even if there was some sort of "you are not allowed to go to country X" rule in the US, the US does not control the borders of country X. If country X wants to let you in, you're in. And, again, the US can't keep you out of the US when you return. As a US citizen, you have the right to enter the US. The only thing the US can do is to impose some sort of penalty on you when you return. The freepers, however, think we live in the old Soviet Union or some sort of kingdom, where citizens can be exiled or banished.

Finally, there is this whole "dual citizenship" thing that is dreadfully and commonly misunderstood. Any number of countries in the world may consider you to be a citizen. The only thing that matters in the US is whether you are a citizen of the US. US law does not care what other countries may consider you a citizen. Many Irish Americans are US citizens who have incidentally perfected citizenship recognized by Ireland. Many Jewish Americans are citizens of Israel. If you have something like $200K lying around, you can buy a citizenship in Dominica. It doesn't affect your US citizenship status one iota.

In sum, there are two ways to become a US citizen, and they are noted in the 14th Amendment. One was is to be born in the US. The other way is to be naturalized under US immigration laws. There is no other class or category of US citizenship. None. Zero. Zip.

The only other interesting point in the non-Donofrio "not born in Hawaii" theories is based upon a deliberate mis-reading of Hawaiian birth record laws which are the way they are as an artifact of there being a lot of people living today and in the 1960's who were born in Hawaii prior to statehood in 1959. But again, most assuredly, every record of birth issued by Hawaii states the place at which the subject was born - as does Barack Obama's.

There is utterly nothing persuasive about any of the cases, and I've only touched on the major points of all of them, because most of the minor points are even sillier than the major ones.

The fact that you even raise the "nobody can testify about where they were born" thing in the context of a discussion of the Donofrio case is a major indication that you either do not know the first thing about it, whether by PM or otherwise, or you are being deliberately obscurantist.

What all of this does mean is that Freepers will give up their support of Bobby Jindal since, although he was born in the US, neither of his parents were naturalized or born US citizens at the time of his birth. So they'll just have to give up on Jindal even though he too is a natural born US citizen.

[Laelth]

91. Well said. k&r n/t

The United States is a LIBERAL Country.

:dem:

-Laelth

[Land Shark]

93. Thanks for the nice mix with the thread's constructive criticism! ;) nt

[Laelth]

108. Not a problem.

As a person who, quite literally, became an attorney because I was appalled by Bush v. Gore, I am honored to meet a scholar of that case, and was extremely interested in what you had to say. I did not know, however, that the Courts prior to Bush v. Gore had never enforced the technical qualifications for office that were written into the Constitution, but that makes all the difference. I am also compelled by the Courts' logic--who are they to subvert the will of the people? The people own the Constitution and are presumed to know the technical requirements of officeholders. If the people choose to waive those requirements, the people have the absolute right to do so. As such, the Courts have refused to subvert the will of the people when elected candidates have been challenged for failing to meet technical Constitutional requirements, and that seems to me to be the right outcome.

I am also compelled by the logic of your argument that we ought not waste time arguing the merits of the current appeals. Stare decisis ought to be determinative here. It's amazing to me what a threat to our Constitution Bush v. Gore actually was. I am glad Sandra Day O'Connor recanted her decision in that case. It has harmed us greatly.

Thanks for sharing what you know. This thread is part of why I love DU. We're all pretty bright people, but all of us have much to learn, and I appreciate your willingness to educate the ignorant, and it's clear you've put a lot of time into doing just that in this thread.

:toast:

The United States is a LIBERAL Country.

:dem:

-Laelth

[Stand and Fight]

96. Kicking and recommended to read tomorrow.

Off to bed for now. A cursory view of the thread reminds me of why I joined DU and continue to support it -- not for the petty arguments and idiotic, childish bickering, but for the depth and thoroughness of discussion.

[Land Shark]

116. Thanks, if I may presume a tad of credit, I'll share with JBerryHill on thoroughness of discussion

[amborin]

105. too much to digest at the moment

[HughMoran]

109. You're right, the case is complete horseshit

We can't stop the decision from being made (how were you proposing we stop it?), but we certainly aren't required to abide by any negative outcome - that would indeed require an immediate "correction" by "we, the people".

[Land Shark]

110. In my experience, people have to go through an evolution of thought on this topic

And since it's going to be brought up again and again even after this week, we may as well learn how to deal with the issue decisively, since many of the "first takes" even though right in spirit of blowing it off, don't play out well in terms of the public debate. i.e. what works for one person may not work well at all as a legal argument or political talking point for general consumption.

[2 Much Tribulation]

117. kick for interesting discussion. nt